T.A. No. 1000 of 2010. Case: Kalawati Devi Vs The Union of India and Ors.. Armed Forces Tribunal

Case Number:T.A. No. 1000 of 2010
Party Name:Kalawati Devi Vs The Union of India and Ors.
Counsel:For Appellant:Sarvesh Pandey, Advocate and For Respondents: Ajay Singh Bisht and D.K. Pandey, Advocates assisted by Soma John, OIC Legal Cell
Judges:D.P. Singh, J. (Member (J)) and Air Marshal Anil Chopra, Member (A)
Issue:Armed Forces Tribunal Act 2007 - Sections 14, 15, 18, 23; Army Act, 1950 - Section 105, Army Act, 1950 - Section 106, 20(3); Code of Civil Procedure, 1908 (CPC) - Section 80; Indian Evidence Act, 1872 - Sections 108, 114
Judgement Date:February 09, 2017
Court:Armed Forces Tribunal
 
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Order:

D.P. Singh, J. (Member (J)), (Regional Bench, Lucknow)

  1. Smt. Kalawati Devi, the petitioner preferred a writ petition, bearing number W.P. No. 954 (SS) of 2001 in the High Court of Uttaranchal at Nainital with a contention that her husband Keshav Ram is not traceable since 17.08.1989 and has been declared deserter by the respondents/Army (7-Sikh Light Infantry). The petitioner, accordingly prayed that petitioner's husband may be treated as missing army personnel under Section 108 of the Indian Evidence Act, 1872 as also under the provisions of Army Orders, as he has not been heard of for 7 years and accordingly he may be deemed to have expired, making the petitioner entitled for post retiral benefits, which have been rejected by the respondents, declaring her husband as deserter.

  2. We have heard Shri Sarvesh Pandey, learned counsel for the petitioner and Shri Ajay Singh Bisht and Shri D.K. Pandey, learned counsel for the respondents, assisted by Maj Soma John, OIC Legal Cell and perused the record.

  3. According to petitioner's counsel, petitioner's husband Keshav Ram joined the Indian Army on 29.01.1966 and served at different places during the period of his service right from 1966 up to 1989. Initially he joined at Meerut and lastly he was posted at Trincomali of Srilanka in 1989 in connection with operation 'Pawan'. While working in the Indian Army in India, he was lastly posted in West Bengal in 7-Sikh Light Infantry, from where he was deputed to participate in operation 'Pawan' at Srilanka in 1988.

  4. While participating in operation 'Pawan' and serving the Indian Army at Trincomali of Srilanka in 1989, he was declared deserter on 17.08.1989 at 19.30 hours. The Officer Commanding 7-Sikh Light Infantry intimated to the petitioner through his letter No. 1202/Ag. Dated 18.08.1989 with desertion roll. A copy of letter dated 18.08.1989 has been filed as Annexure No. 3 to the petition. A perusal of aforesaid letter dated 18.08.1989 shows that the petitioner's roll was forwarded for necessary action on petitioner's part, requiring the petitioner to handover her husband to the Unit whenever he is found anywhere.

  5. After receipt of information with regard to petitioner's husband (supra), the petitioner wrote a letter on 28.08.1989 to the Commanding Officer, 7-Sikh Light Infantry, requesting him to search him personally, followed by due investigation with all efforts to trace him. A perusal of the letter dated 28.08.1989 sent to the Commanding Officer shows that it was sent from Pithoragarh, the native place of the petitioner, pointing out that Shri Keshav Ram has been a loyal soldier of Indian Army and it is most unlikely that he will desert the Unit from operational area (Trincomali of Srilanka), that too after putting in 24 years of service.

  6. From the pleadings on record, it appears that the petitioner was informed by letter dated 02.09.1989 that her husband Keshav Ram has been declared missing and declaration of desertion sent vide letter dated 17.08.1989 stood cancelled. The declaration of missing vide letter dated 02.09.1989 was followed by subsequent letters dated 20.09.1989, 16.10.1989 and 28.10.1989, collectively filed as Annexures No. 5 and 5-A to the petition.

  7. Petitioner sent letters dated 23.09.1989 and 25.10.1989, making request to the Unit to continue her family allotment, as made by her missing husband Keshav Ram, a copy of which has been filed as Annexure No. 7 to the petition. As a follow up action, the Unit held a Court of Inquiry and in pursuance of the finding recorded thereon, Keshav Ram was declared missing and the outcome of inquiry was notified in Part- II, Order No. 256/7/89 of the Unit. The missing report dated 13.11.1989 was forwarded to all the Units concerned through various letters, the copy of report/letter dated 13.11.1989 is annexed as Annexure No. 8 to the petition. The copy of missing report has been circulated vide letter dated 21.11.1989, as contained in Annexure No. 9 to the petition.

  8. Since petitioner's husband did not turn up, he was declared absent without leave, for short 'AWL', in view the provisions of Army Act and treated as deserter under Section 106 of the Army Act. Petitioner also sent a petition dated 07.05.1989, in response to which by letter dated 07.06.1990 (Annexure No. 12 to the petition), she was informed that the J.C.O. Keshav Ram was running in heavy debit balance at the time of desertion and a case of forgery was also pending against him, for which a Staff Court of Inquiry has been ordered and outcome of which shall be intimated in due course. Thus, it appears that, firstly petitioner's husband was declared as deserter and later on declared as a person absent without leave. Once in an opinion expressed by Court of Inquiry petitioner's husband was declared as deserter under Section 206 of the Army Act (Annexure No. 10) then why the stand has been changed by adopting another theory of absent without leave on account of loan burden, is not understandable. Another application was submitted by the petitioner on 25.07.1991, which was replied by letter dated 19.08.1991 by Capt Adjt Sumit Katyal for Officer Commanding, copy of which has been filed as Annexure No. 14 to the petition. The whole history of desertion, changing the stand is reflected from letter dated 19.08.1991, written by Capt Sumit Katyal in response to petitioner's application dated 25.07.1991 (Annexure No. 14). For convenience the entire letter dated 19.08.1991 is reproduced here under:-

    "7 SIKH LI
    C/o 56 APO
    1303/KR/AG/CS
    19 Aug 91

    Smt. Kalawati Devi
    W/O JC- 162155M Ex Nb Sub (Clk)
    Keshav Ram
    C/o Sh Hayat Singh Lohia
    Shopkeeper, Silldham Chowk
    Pithoragarh
    Dist. Pithoragarh (UP)

    PETITION

  9. Reference Records The SIKH LI letter No JC- 162155M/D&C/NE dated 25 July 91.

  10. Parawise comments on your petition dated 10 April 91, received vide Records The SIKH LI letter under reference are given in succeeding paragraphs.

  11. Para 1, 2, 3, 4 & 5. JC- 162155M Nb Sub (Clk) Keshav Ram of this unit deserted from unit lines without arms/ammunition on 17 August 1989 from OP PAWAN (Trincomalee) SRI LANKA. Accordingly, desertion roll was issued by this unit vide our letter No. 1202/AG dated 18 August 89 and 1303/KR/AG/CS dated 30 August 89 and the case was reported to all concerned. All efforts were made to trace out your...

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